Citation Nr: 1147107
Decision Date: 12/28/11 Archive Date: 01/09/12
DOCKET NO. 10-40 571 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Newark, New Jersey
THE ISSUES
1. Entitlement to compensation pursuant to 38 U.S.C.A. § 1151 for a painful corn of the left foot.
2. Entitlement to a rating in excess of 10 percent for residuals of a right iliac crest biopsy.
3. Whether new and material evidence has been submitted to reopen a claim for service connection for residuals of left foot contusion, left great toe and hematoma, and right great toe.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
J Fussell
INTRODUCTION
The Veteran had active duty service from January 1953 to December 1956.
This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2008 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA) in Newark, New Jersey.
In his substantive appeal, the Veteran requested a hearing before the Board. He was unable to attend his scheduled June 2011 hearing.
Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010). 38 U.S.C.A. § 7107(a)(2) (West 2002).
The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required.
REMAND
Pursuant to 38 C.F.R. § 20.700(a) (2011), a hearing on appeal will be granted to an appellant who requests a hearing and is willing to appear in person. Also, a veteran is entitled to a hearing before a Veterans Law Judge, either in person, or via video conference in lieu of an in-person hearing, if he so chooses. 38 U.S.C.A. § 7107(b) (West 2002); 38 C.F.R. § 20.700 (2011).
In the Veteran's VA Form 9, Appeal to the Board, he requested a hearing before a Veterans Law Judge at a local RO (commonly called a travel Board hearing).
The Veteran was scheduled for a travel Board hearing in June 2011. He failed to attend that hearing.
Later in June 2011 the Veteran's representative reported that the Veteran had been unable to attend the scheduled travel Board hearing due to hospitalization. On file is a certificate from a private medical facility documenting the Veteran's hospitalization in June 2011. In October 2001 the Veteran indicated that he still desired a travel Board hearing before a Veterans Law Judge at the local RO.
38 C.F.R. § 20.704(c) provides that:
Requests for a change in a hearing date may be made at any time up to two weeks prior to the scheduled date of the hearing if good cause is shown. Such requests must be in writing, must explain why a new hearing date is necessary, and must be filed with the office of the official of [VA] who signed the notice of the original hearing date. Examples of good cause include, but are not limited to, illness of the appellant and/or representative, difficulty in obtaining necessary records, and unavailability of a necessary witness. If good cause is shown, the hearing will be rescheduled for the next available hearing date after the appellant or his or her representative gives notice that the contingency which gave rise to the request for postponement has been removed. If good cause is not shown, the appellant and his or her representative will be promptly notified and given an opportunity to appear at the hearing as previously scheduled. If the appellant elects not to appear at the prescheduled date, the request for a hearing will be considered to have been withdrawn. In such cases, however, the record will be submitted for review by the Member who would have presided over the hearing. If the presiding Member determines that good cause has been shown, the hearing will be rescheduled for the next available hearing date after the contingency which gave rise to the request for postponement has been removed.
In this case, the Veteran's inability to attend the scheduled hearing stems from his hospitalization in June 2011. Thus, good cause has been shown. Pursuant to 38 C.F.R. § 20.704(c), "the hearing will be rescheduled for the next available hearing date after the contingency which gave rise to the request for postponement has been removed."
Accordingly, the case is REMANDED for the following action:
(Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010). Expedited handling is requested.)
Schedule the Veteran for a travel Board hearing before a Veterans Law Judge at the Newark, New Jersey, Regional Office.
The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2010).
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DEBORAH W. SINGLETON
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2010).